5- Sources of IL Flashcards
what’s a treaty?
legal agreement between states that outlines specific rights and obligations for the parties involved.
where can we find rules relating to the treaties?
1) part of customary IL
2) Vienna convention on the law of treaties- the authoritative restatement as well as positive law of treaties.
some argue that treaties are not sources of law
they are rather a source of obligation under the law that’s binding to its parties.
why do treaties have to be obeyed?
pacta sunt servanda -> agreements must be kept.
- the most important rule of customary IL
- but there are some situations where its ok to breach it.
pacta sunt servanda
agreements must be kept.
why can treaties be sources of IL?
treaties codify customary IL and are accepted to be authoritative statements of customary IL
treaties can not bind non-parties but non-parties can choose to abide by its rules
are treaties hard or soft law?
hard law. they can do everything except authorize the violation of peremptory norm (vienna conv)
“law making” and “contractual” treaties
law making -> creating new rules
cotractual -> imposing obligations
why is there “ratification”?
when communication technology was bad, ambassadors needed to let their head know and that took a long time so they added ratification to see if its compatible with domestic law.
ratification in practice
most treaties aren’t binding until their ratified- but in the meantime the state isn’t meant to do anything that defeats the purpose of the treaty
ratification is done according to (…) procedures
domestic procedures
- executive (in UK and common wealth countries)
- legislature (in US)
monist systems
treaties don’t need to be translated into municipal law, they have effect directly (e.g Netherlands)
dualist systems
domestic legitlation is required to translate teh treaty obligations into domestic municipal law. (UK)
its binding in international law, but not in domestic law.
which is more: monism/ dualism?
most states have a mix of the two (US)
how can treaties end?
1) on its own terms like self-termination expiry or disappearance of essential conditions
2) by withdrawal (denunciation)
3) in response to a serious breach by one party
define customary law
intl custom as evidence of a general practice accepted as law.
a custom is only law if…
1) there’s evidence of widespread and settled state practice
2) opinion juris- states adhere to the custom due to a sense of legal obligation
define opinion juris
states adhere to the custom due to a sense of legal obligation
problems with opinion juris
state practice isn’t only through the actions of the executive, but also through domestic courts, and public statements.
therefore, opinion juris is an artificial exercise because it implies that states have a collective mind of their own.
how can states prevent being bound by an emerging customary IL?
BY BEING A PERSISTENT OBJECTOR
the state must explicitly and persistently object to the formation of the new customary law. If the state does not do this, it can be bound by the emerging customary law even if it does not agree with it. This is because customary law is based on the actions and beliefs of states, not on written treaties or agreements.
“the generalized principles of law recognized by civilized nations”
-> a source of IL !
widely accepted legal principles/ norms followed by the global civilized community.
two interpretations of “the generalized principles of law recognized by civilized nations”
1) GPL RCN are commonly accepted legal standards followed by nations in IL.
2) GPL RCN are flexible and universal legal principles based on shared concepts,
The ICJ Statute recognizes judicial decisions and writings of publicists as **“subsidiary means” ** to determine rules of law. what does this mean?
“Subsidiary means” aren’t the primary sources of IL, but they help to interpret existing rules. They’re not binding like treaties/ customary law, but they can still be influential.
UNGA resolutions as sources of law
while not legally binding they carry significant political weight and affect the development of customary IL.
Studies produced by the Inl Law Commission (ILC) as sources of law
is a subsidiary body of the UNGA responsible for making recommendations for IL. Although ILC’s studies aren’t binding they shape IL.
UNSC as source of law
does not make law
rather, creates specific obligations backed by the UN charter
examples of ius cogens
wars of aggression
genocide/ crimes against humanity
slavery / torture
piracy
officially, is there a hierarchy of the basic principles of IL?
no the only hierarchy is that peremptory norms are above anything else.
hierarchy in IL
treaty prevails over customary law (for parties in the treaty- doesn’t apply to non-parties)
LEX SPECIALIS
the specific rule prevails over the general rule
LEX POSTERIOR
the latter rule overrides the earlier rule
what if a customary rule emerges after a treaty?
1) if the customary rule is peremptory it overrides the treaty
2) if the parties of the treaty created it: the customary rule will be used to explain the treaty, but it won’t necessarily replace it entirely.
